SC Judges Pon­der Over Right to Prop­erty, Vote

The Economic Times - - Economy: Macro, Micro & More - Sa­man­waya.Rau­tray

CEN­TRAL IS­SUE Dur­ing right to pri­vacy de­bate, two judges ask why right to vote and right to prop­erty are not fun­da­men­tal rights CHANGE OF LAW

New Delhi: Supreme Court judges, de­bat­ing whether or not cit­i­zens have a fun­da­men­tal right to pri­vacy, have won­dered aloud about the sta­tus of right to vote and prop­erty as well. A nine-judge bench wrapped up ar­gu­ments last week on the pri­vacy is­sue in the Aad­haar con­text. Dur­ing the pro­ceed­ings, at least two judges asked why the right to vote and the right to prop­erty were not fun­da­men­tal rights. Jus­tice RF Na­ri­man ex­pressed the view that the right to prop­erty should have been re­tained as a fun­da­men­tal right. Right to prop­erty was a fun­da­men­tal right en­shrined in the Con­sti­tu­tion till the gov­ern­ment in 1978 changed the law to re­duce it only to a le­gal right. The gov­ern­ment had then de­fended it as ne­c­es­sary to pave the way for agrar­ian re­forms. The amend­ment gave it the power to ac­quire any prop­erty for a pub­lic pur­pose, pay­ing an “amount” and not a “com­pen­sa­tion”.

Na­ri­man said this placed the “lit­tle man” at a huge le­gal dis­ad­vanta- ge. “Rights of the lit­tle man must be pro­tected,” he said. “Right to prop­erty should be made a fun­da­men­tal right,” Na­ri­man said in one of his many in­ter­ven­tions dur­ing the de­bate on pri­vacy.

In 2011, a Supreme Court bench headed by Jus­tice GS Singhvi had de­clared that the state must stick to law while de­priv­ing cit­i­zens of prop­erty and dubbed right to prop­erty a con­sti­tu­tional right.

Jus­tice Jasti Che­lameswar spoke about the need to have a funda- men­tal right to vote.

Right to vote is a le­gal right in In­dia, con­ferred by a statute. So is the right to con­test elec­tions.

A le­gal right is cre­ated by an or­di­nary law and can be taken away by chang­ing the law. A fun­da­men­tal right, on the other hand, is guar­an­teed by the Con­sti­tu­tion and al­lows a ci­ti­zen to move Supreme Court for its en­force­ment. It can only be cur­tailed by a con­sti­tu­tion amend­ment which must pass the test of “rea­son­able re­stric­tions.”

Since the rights to vote and con­test elec­tions are le­gal rights, some state have en­acted laws to tweak those. One such law, which made hav­ing a toi­let in the house manda­tory for can­di­dates con­test­ing pan­chayat polls, was chal­lenged in court but was up­held by Jus­tice Che­lameswar. There is no fun­da­men­tal right to vote in the Con­sti­tu­tion though we have a par­lia­men­tary form of democ­racy. Ar­ti­cle 326 of the Con­sti­tu­tion only speaks of adult suf­frage for those above 18.

Jus­tice Che­lameswar said he did not agree with the view that the right to vote was only a le­gal right. “I do not be­lieve that we don’t have at least a con­sti­tu­tional right to vote,” he said.

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